Substantive public policy in cross-border litigation: a common law study

Substantive public policy in cross-border litigation: a common law study

This thesis examines the evolution of the substantive public policy exclusion in the cross-border litigation of major Anglo-common law jurisdictions. The substantive doctrine of public policy in its domestic and cross-border spheres of operation has long courted criticism for its uncertainty, ambiguity, and unruliness. As a means by which to exclude foreign law or deny recognition to a foreign judgment, cross-border public policy ultimately involves a moral evaluation of foreign law. This thesis sets out to deepen existing scholarly understanding of the historical and theoretical development of the substantive exception in cross-border litigation in Anglo-common law jurisdictions. In addition, it aims to rehabilitate the reputation of substantive public policy, which is still occasionally characterised as an ‘unruly horse’ in need of taming. It fulfils this aim by examining substantive public policy’s modern content in the jurisprudence of major Anglo-common law jurisdictions and recommending two new species of exception: public international law and foreign governmental interests.